Smoke rises while Iraqi security forces use bombs as Kurdish security forces withdraw from a checkpoint on the outskirts of Irbil, Iraq, on Oct. 20. (Khalid Mohammed/Associated Press)

The day before a Sept. 25 independence referendum, the Kurdistan Regional Government (KRG) published a 30-page report arguing that Iraq is a “voluntary union” in which Kurdistan has “retained its sovereign status.” The report also listed a large number of constitutional violations by the Iraqi government, including the failure to resolve the status of disputed territories by the agreed deadline, which expired 10 years ago.

The report argues that the “voluntary union” is therefore no longer valid, entitling Kurdistan to organize an independence referendum in the territory that it controlled in September 2017, including the city of Kirkuk. The referendum prompted a swift Iraqi, regional, and international response, driving Kurdish forces out of the disputed territories and of what remained of the Kurdistan region’s political institutions.

Iraqi Prime Minister Haider al-Abadi, senior Kurdistan officials, the United States and the United Nations have all stated that any effort to resolve the crisis should be based on Iraq’s 2005 constitution. But as I explain in my book, “The Struggle for Iraq’s Future,” that document was drafted under very poor conditions with long-term consequences as we are seeing now.

Ambiguous wording 

The KRG’s report focuses on the 2005 constitution’s preamble, which in its final sentence states, “adherence to this Constitution preserves for Iraq its free union of people, of land, and of sovereignty.” The report asserts this wording was deliberately chosen to allow Kurdistan to preserve its sovereignty, which it could exercise at any point by withdrawing from the union. But the wording itself — particularly the Arabic original — is so vague that it is essentially devoid of meaning. The idea that Iraq is made up of several sovereign states is directly contracted by a number of other provisions, including Article 1 that states Iraq is “a single federal, independent and fully sovereign state.” Baghdad and Irbil do not see eye to eye on this most fundamental of issues.

Kirkuk’s constitutional status is equally unhelpful. The 2005 constitution recognizes the Kurdistan Region, but does not explicitly state what territories it governs. When the constitution was drafted, the understanding between Baghdad and Irbil was that Kurdistan regional authority should extend to all the areas that it controlled in March 2003, including parts of Kirkuk province. But without a specific constitutional provision to that effect, legal realities are subject to changing realities on the ground.

Regardless of who controls Kirkuk and the other areas retaken by Baghdad in recent days, they remain disputed under Iraqi law. Article 140 of the Iraqi constitution imposed a Dec. 31, 2007, deadline, but the constitution was silent on what should be done if that deadline was missed.

The KRG argued that the absence of progress meant it was entitled to consult the people living in those areas  through the independence referendum. But this is not supported by any clear legal principles. International law is, at best, ambiguous on this issue, leaving scholars who agree with the KRG’s position to mainly cite each other. References to the right to self-determination are not particularly satisfying as the Kurdistan region is not a colony and because Kurdish citizens have exercised that right through regular elections.

Two failing governments

Which brings us to another problem with the KRG’s decision to organize the referendum in disputed territories. The KRG has largely failed to adhere to basic democratic norms. Not only has the KRG president overstayed his term for more than two years, but its government is also constitutionally illegitimate, its parliament has been suspended, its budget is not subject to any meaningful auditing process and the main Kurdish parties were unable to agree on a regional constitution.

Kurdistan authorities have not been neutral or effective security providers in the disputed territories that they control. The Kurdish Peshmerga fighters abandoned Yazidi minorities when the Islamic State attacked in 2014 and have been accused of emptying towns and demolishing villages. A number of communities boycotted the referendum, and some of the official results have even been questioned by Kurdistan officials.

The same can be said of Baghdad: many of the territories that it controls have been ruled arbitrarily, and the federal government is so wrought with corruption and mismanagement that it won’t likely solve its dispute with Irbil through unilateral action.

A negotiated outcome

So, Baghdad now controls the disputed territories, but neither its constitution nor international law provide an obvious path forward. The governments in Baghdad and Irbil seem incapable of resolving this issue.

Any durable solution therefore will have to be negotiated and agreed upon by the various parties, including good-faith international actors. If Baghdad and Irbil can agree that Kirkuk should be governed as its own federal region, then that option can be put to a referendum within Kirkuk province in accordance with Article 119 of the constitution, which allows individual provinces to transform into federal regions. This would also satisfy Article 140’s requirement for a referendum.

The remaining disputed territories are subsumed in larger provinces and less likely to be able to transform into regions of their own, requiring a purely political solution. However, if experience teaches us anything, it is that it could take years to make any progress on this issue and that festering tensions could worsen in the meantime.

The crisis surrounding the independence referendum reminds us of the long fallout of ineffective constitutional negotiations, particularly in post-conflict countries such as Iraq.

Zaid Al-Ali is a senior adviser on constitution building in the Arab Region for the International Institute for Democracy and Electoral Assistance and is the author of “The Struggle for Iraq’s Future: How Corruption, Incompetence and Sectarianism Have Undermined Democracy,” (Yale University Press, 2014). Follow him on Twitter at @zalali